Autopen'd pardons cannot be revoked
The autopen is good enough for a pardon
“If he approve he shall sign it.”
You know this part of Article 1 Section 7 of the Constitution: It’s the last step in a bill becoming a law, when the President signs it.
It is the only time the Constitution requires the president to sign something.
No signing requirement exists for the President’s pardon power in Article 2 Section 2:
[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
So President Trump’s statement early this morning that he won’t recognize some of President Biden’s pardons “because of the fact that they were done by Autopen” has no basis in law.
The autopen is a device that an aide can activate to create the President’s signature.
President Obama used the autopen to sign legislation into law twice in 2011 while he was traveling. Those were the first times the autopen was used to sign legislation. To my knowledge, it wasn’t challenged in court.
He didn’t come up with the idea. In 2005, President Bush asked the Department of Justice whether he could use the autopen to sign legislation. DOJ advised Bush that the President “need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law,” although Bush did not do so, as far as has been reported.
And Axios reports that the autopen has been used for pardons before.
Is the autopen a good thing? That ship has long sailed. It’s been recognized as legal. That counts for something in court.
And if it’s good enough for the one place the Constitution requires a signature, it’s obviously good enough for a pardon. At least until the Supreme Court weighs in.
(I don’t know whether President Trump himself has used the autopen. Early reporting about that doesn’t seem reliable.)
A new anonymous conspiracy theory
This all seems to have started a few days ago when the New York Post publicized an anonymous claim, despite, it wrote, “the lack of concrete evidence,” that Biden’s signature was being used without his knowledge.
No concrete evidence must be the Post’s new doublespeak for conspiracy theory.
Trump repeated the claim in his post but didn’t say that was the basis for “voiding” Biden’s pardons. It would be the best basis on which to vacate the pardons if it were true.
Trump wants to prosecute lawmakers
The threat of a prosecution might be enough to intimidate his opponents, but a prosecution of a Biden pardon recipient now seems likely.
Trump called for the prosecution of former Rep. Liz Cheney a year ago for her work on the House Select Committee on the January 6 Attack, which investigated both the riot at the Capitol as well as Trump and his allies’ attempts to change the certified outcome of the 2020 presidential election.
Biden preemptively pardoned the members of the committee, and those pardons appear to be among the ones Trump conveniently doesn’t recognize.
I’ve read claims against Cheney. They’re baseless.
Legislators are also protected from prosection for actions they take in their official legislative work. That’s called the Speech or Debate Clause of the Constitution, and it’s meant to prevent the type of intimidation we’re seeing here.
But legislators are frequently prosecuted for conduct DOJ claims is outside of the bounds of their official duties, and that could be coming next for members of the January 6 committee.
The mere threat is damage enough to an indpendent legislative branch.